time. It is in the public interest to uphold Congress’s decision to impose those requirements as a prerequisite to waiver. See Am. Trucking Ass’ns, Inc. v. City of Los Angeles , 559 F.3d 1046, 1059–60 (9th Cir. 2009) (weighing public interest in upholding Congress’s decisions against other interests). For reasons stated above, the CAA’s requirements have not been satisfied and the waiver is unlawful. The more than $1 billion in compliance costs and market disruptions also threaten manufacturers and consumers and undermine California’s commercial landscaping sector, which includes more than 70,000 businesses – most sole proprietors and similar small businesses. Those landscapers continue to need and want gas-powered outdoor power equipment at least in part because battery- powered alternatives are unsuitable. Rugg Decl., ¶¶ 25–26. Maintaining the status quo with a stay would also maintain regulatory stability. 2. Alternatively, a Three-month Administrative Stay Is Warranted under the CAA, Followed by a Stay Pending Judicial Review. A stay is warranted under the CAA because OPEI’s petition for reconsideration is based on at least two arguments that were impracticable to raise at the time of the decision and are of central relevance. First, OPEI has argued that EPA incorrectly stated and assumed in its Notice of Decision that CARB failed to analyze manufacturer costs because “actual data” on those costs was unavailable. 15 In fact, actual data had been presented to CARB and made part of the rulemaking record. That data showed a cost to manufacturers of more than $1 billion. OPEI could not have known EPA would ignore that data until the Notice of Decision issued. Second, OPEI’s petition for reconsideration cites a December 2024 joint report by EPA and DOE that undercuts the entire basis for the Notice of Decision. Because that report did not issue until December 2024, which was just weeks before EPA published its Notice of Decision, OPEI could not have raised it during the public comment period. 16 a. EPA’s Failure to Consider Actual Data in the Record on Costs to Manufacturers In its petition for reconsideration, OPEI noted that EPA failed to consider actual data in the record on costs to manufacturers and had erroneously treated
15 Petition for Reconsideration at 2. 16 EPA also relied on flawed “supplemental comments” CARB submitted after the comment period closed, as described in OPEI’s Petition for Reconsideration at 7, 10 n.34.
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